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Independent Review of the End of Life Choices (Voluntary Assisted Dying) Bill 2020

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Independent Review of the End of Life Choices (Voluntary Assisted Dying) Bill 2020

Prepared by the Tasmanian Policy Exchange at the University of Tasmania

February 2021

Independent Review of the End of Life Choices (Voluntary Assisted Dying) Bill 2020

February 2021

ACKNOWLEDGEMENTS

This report has been prepared by the Tasmanian Policy Exchange (TPE) at the University of Tasmania.

The TPE was established by the University of Tasmania as a strategic priority in 2020 to enhance the University’s capacity to make timely and informed contributions to policy issues and debates which will shape Tasmania’s future.

The Review Panel would like to thank all those who made formal submissions to the Review and to colleagues in Victoria, Western Australia and Queensland who shared their expertise and insights at the Review workshop conducted in early February. We would also like to thank the researchers and staff across the University who contributed their time and expertise to the preparation of this report.

THE REVIEW PANEL

Professor Richard Eccleston (Chairperson), Tasmanian Policy Exchange

Professor Fran McInerney, Wicking Dementia Research and Education Centre

WITH CONTRIBUTIONS FROM

Professor Margaret Otlowski, School of Law
Madeleine Archer, UTAS Science/Law graduate Sarah Hyslop, Tasmanian Policy Exchange Hollie Jackson, UTAS Arts/Law graduate
Associate Professor Jenny Presser, School of Medicine

Contents

TERMS OF REFERENCE........................................................................................................................................................3 THE REVIEW PANEL.................................................................................................................................................................4 A NOTE ON LANGUAGE ...................................................................................................................................................... 7 EXECUTIVE SUMMARY ......................................................................................................................................................... 9

PART ONE - TASMANIA’S END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: THE CONTEXT

Section 1: Section 2:

Introduction.................................................................................................................................... 17

The historical development of voluntary assisted dying law................21

2.1 The history of voluntary assisted dying legislation in Europe, the United States, New Zealand and the United Kingdom..................................................................................................................21

2.2 The history of voluntary assisted dying legislation in Australia....................................................................................................................................... 26

2.3 The development of voluntary assisted dying legislation in Victoria, Western Australia and South Australia ..........................................30

2.4 The history of voluntary assisted dying legislation in Tasmania ....................................................................................................................................30

PART TWO – TASMANIA’S END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: KEY ELEMENTS

AND COMPARATIVE ANALYSIS

  • Section 3:
  • The End of LIfe Choices

(Voluntary Assisted Dying) Bill 2020: A summary..........................................33

3.1 Objectives and principles...............................................................................................33 3.2 Eligibility ....................................................................................................................................33 3.3 Consultation and referral process ........................................................................ 36 3.4 Administration of voluntary assisted dying substance........................38 3.5 Legal and other protections.......................................................................................41 3.6 Monitoring and oversight............................................................................................44

Section 4:

Tasmania’s End-of-Life Choices (Voluntary Assisted Dying) Bill 2020: Comparative analysis.................45

4.1 Key elements of the Victorian Voluntary Assisted Dying Act 2017 ..............................................................................................................................................45

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4.2 Comparative VAD tables..............................................................................................48 4.3 Tasmania’s End-of-Life Choices (Voluntary Assisted Dying Bill 2020: Comparative analysis ..............................................................................................................54

PART THREE - END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: PUBLIC SUBMISSIONS AND FURTHER CONSIDERATIONS

Section 5: Submissions made to the independent Review Panel.............................................. 59

5.1 Key themes from public submissions................................................................60

5.2 Specific amendments proposed in submissions..................................... 62 5.3 Specific amendments which the Review Panel

believe warrant consideration..........................................................................................64

Section 6: Insights and further considerations for VAD in Tasmania...................................... 67

6.1 Considerations for the implementation and administration of voluntary assisted dying ................................................ 67

6.2 Data on voluntary assisted dying access in Victoria and Canada..........................................................................................................69

6.3 Considerations for people seeking voluntary assisted dying....................................................................................................... 72

6.4 Considerations for health and care professionals.................................... 74 6.5 Considerations for hospitals and aged care facilities..........................................................................................................78

6.6 Considerations for palliative care and end-of-life planning........................................................................................................81

6.7 Legal considerations........................................................................................................84

ENDNOTES

...................................................................................................................................................................87

REFERENCES APPENDIX 1

APPENDIX 2

APPENDIX 3

................................................................................................................................................................... 93 Submissions to the Review...............................................................................................100 Complete tables 2.2 and 2.3.............................................................................................. 101 Summaries of VAD legislation in comparative jurisdictions.................. 103

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The University of Tasmania’s Independent Review of the End-of-Life Choices (Voluntary Assisted Dying) Bill 2020

Terms of Reference

The VAD Review Panel (the Panel) will include health, legal and social sciences expertise and will provide advice to the Tasmanian Government for dissemination to Members of the House

of Assembly on specific matters in relation to the End-of-Life Choices (Voluntary Assisted Dying)

Bill 2020 (‘the VAD Bill’) tabled in the Legislative Council by the Hon Michael Gaffney MLC on 27 August 2020.

The Panel will conduct research and targeted consultation, through a written submissions process, in relation to the proposed VAD Bill in Tasmania and, in order to inform parliamentary debate, provide an independent and objective report to the Tasmanian Government containing:

••
A concise summary of the VAD Bill, following amendment by the Upper House. Comparison of Tasmania’s Proposed VAD Bill to legislation (including Bills) relating to voluntary assisted dying, however described, in other Australian states and territories and overseas jurisdictions, including but not limited to the processes allowed by the legislation, safeguards and protections for vulnerable people.

•

•
An outline of the historical development of VAD legislation in other Australian jurisdictions in terms of scope and protections.

Synopsis of relevant reports, analysis and material in other Australian states and territories and overseas jurisdictions pertaining to the implementation and administration of VAD reform.

  • •
  • Objective analysis of:

₀₀

the safeguards put in place in other jurisdictions relating to the impact of VAD legislation on medical practice and practitioners, allied health and care professionals, family and social relationships, and provision for and practices in aged care.

the interrelationship between the VAD Bill and existing palliative care and advance care directives in Tasmania and the experience of other jurisdictions in implementing VAD legislation to identify matters that might need to be addressed or monitored should the legislation pass into law.

₀

stakeholder feedback relevant to all matters previously described.
The targeted call for submissions should indicate that submissions are to address the processes allowed by the legislation, safeguards and protections for vulnerable people; and the interrelationship between the VAD Bill and other end-of-life choices.

The Report is to be completed and provided to Government in February 2020

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The Review Panel

Professor Richard Eccleston (Chairperson)

Professor of Political Science, University of Tasmania

Prof. Eccleston is a specialist in social and economic policy and has worked on a wide range of policy issues, analysing and developing practical evidence-based solutions to some of the

most significant policy challenges facing our community. In recent years, Prof. Eccleston has

led projects on a wide range of topics from tax reform, housing affordability, migration and preventive health to the future of renewable energy in Tasmania. He was a Fulbright Senior

Scholar based in Washington DC in 2014 and was the Founding Director of the Institute for Social

Change at the University of Tasmania.

Professor Fran McInerney

Professor of Dementia Studies and Education, Wicking Dementia Research and

Education Centre, University of Tasmania

Prof. McInerney has a professional background in nursing, with higher degrees in social science

and public health. She has a wealth of experience in palliative care and end-of-life planning and considers her most important research to be educative. She has been instrumental in creating dementia-centred educational tools in collaboration with the Wicking Centre. She has also developed resources to help those in aged care facilities – staff and families – talk about dementia and death and dying. Her other work includes measurement of dementia literacy and contributions to MOOCS (massive open online courses) about dementia. The University of Tasmania’s Understanding Dementia MOOC has been rated one of the top ten of all MOOCs, and

number one of all health MOOCs in the world. Prof. McInerney has been a member of the boards

of Palliative Care Australia, Palliative Care Tasmania, and Dementia Australia (Vic).

Professor Margaret Otlowski

Professor of Law and Deputy Director of the Centre for Law and Genetics, University of

Tasmania

Prof. Otlowski is a distinguished legal scholar and a former Dean of the UTAS Law School. Her research focuses on the relationship between law, health and ethics including voluntary assisted dying and end-of-life choices. Current research projects include regulating genomic data and protecting individuals from genetic discrimination. Reviewing laws and recommending change in light of new ethical questions is a fundamental aspect of her work. She has been engaged by Commonwealth and State governments as a consultant and member of various committees, including the NHMRC’s Australian Health Ethics Committee. Prof Otlowski has also been a member of the Tasmanian Anti-Discrimination Tribunal and of the Guardianship and Administration Board and is a Fellow of the Australian Academy of Law.

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Associate Professor, Jennifer Presser

Academic Lead, Bachelor of Medicine Bachelor of Surgery (MBBS),

University of Tasmania

Associate Prof. Presser started her professional life as a research scientist before embarking on a career as a GP. While working in practices around Australia, she continued an interest in teaching

and has worked in general practice specialist training as well as with medical students. In clinical

practice Prof. Presser has worked in palliative care in the Northern Territory and completed a Clinical Diploma in Palliative Care. She has enjoyed team-based community work with a

particular focus on palliative care, sexual health, Aboriginal and Torres Strait Islander health and

mental health. Her research expertise is in the areas of mental health in primary care, doctors’ well-being, and training in primary care. Prof. Presser has just completed a term as Chair of the Tasmanian branch of the Royal Australian College of General Practice.

TPE Support Staff

Madeleine Archer – Graduated with a Bachelor of Science and Bachelor of Laws with first class

honours in Law from the University of Tasmania in 2020 and worked as a policy intern at the TPE between November 2020 and February 2021. She is currently undertaking the Tasmanian Legal Practice Course.

Sarah Hyslop – Is a policy analyst and project manager at the Tasmanian Policy Exchange and has managed and contributed to a range of significant projects at the University of Tasmania

since 2014. She was previously a senior analyst in the Victorian Parliamentary Secretariat.

Hollie Jackson – Graduated with a Bachelor of Arts and Bachelor of Laws with first class honours

in Law from the University of Tasmania in 2020 and worked as a policy intern at the TPE between November 2020 and February 2021. She is currently a clerk at Allens Linklaters.

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A note on language

Voluntary assisted dying is a complex issue that demonstrates the diversity of views and values held across our community. Given that the language used to describe voluntary assisted dying is itself contested, the Panel considers that it is appropriate to follow the lead of the Victorian Ministerial Advisory Panel (p.7) and clarify the language used in this Report.

The term ‘voluntary assisted dying’ is used throughout the Report to avoid unnecessary stigmatisation of those seeking to access the proposed new regime, and in preference to alternative terms commonly used in other jurisdictions or contexts (such as voluntary euthanasia, assisted suicide, physician-assisted suicide and medical aid in dying). Voluntary assisted dying, or VAD, is now widely used in Australia and is the term used in the End-of-Life Choices (Voluntary Assisted Dying) Bill 2020. Establishing a clear distinction between VAD and suicide (s.138 of the Bill) is important to avoid sections of the Commonwealth Criminal Code Act (1995) relating to the provision of suicide-related material via telecommunications applying to VAD (Section 3.7.2).

Other terms used in the Report and the associated debate include:

Assisted suicide

This term is sometimes used to describe interventions where patients are prescribed lethal medications that they self-administer. It emphasises the active choice of the person wishing to die. It is not used as frequently as it once was, however, given the importance of distinguishing between VAD and dying from suicide, the latter of which also involves seeking death, but in the absence of a terminal and/or debilitating disease.

Dying with dignity End-of-life care

This is an expression commonly used to describe VAD, particularly in the United States. The Victorian Ministerial Advisory Panel advised against using this term to avoid any suggestion that those who do not access VAD at the end of life (for example, using other forms of health care such as

palliative care) may be dying in an ‘undignified’ fashion (p. 7).

Palliative Care Australia describes end-of-life care as care that combines the broad set of health and community services that care for people at the end of their lives. Further, it states that quality end-of-life care involves strong networks between specialist palliative care providers, general practitioners, primary specialists and support care providers and the community (PCA 2018b).

Euthanasia

This term means the intentional taking of a person’s life by another person, in order to relive that person’s suffering. It is taken from Greek with eu meaning good and thanatos meaning death. The Human Rights Commission of Australia points out that ‘euthanasia’ can cover an array of practices including passive voluntary euthanasia, active voluntary euthanasia, passive involuntary euthanasia and active involuntary euthanasia.

Because of this lack of specificity, and also because of connections to

historic abuse using involuntary euthanasia, the term ‘euthanasia’ is less commonly used now than in the past.

Palliative care MAiD

This is an approach to health care where a decision has been made not to pursue curative outcomes, usually where there is an acknowledgement that there is no curative treatment available. This approach is based on the premise of neither hastening nor prolonging death, but rather easing suffering.

In Canada, voluntary assisted dying is described as Medical Assistance in Dying or MAiD. MAiD covers both assisted suicide and euthanasia for

persons who meet specified criteria.

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Executive Summary

In November 2020 the Tasmanian Government asked the University of Tasmania to undertake an Independent Review of the End-of-Life (Voluntary Assisted Dying)

Choices Bill (2020) which passed the Legislative Council with amendments on 10 November 2020 (the Tasmanian VAD Bill).

The aims of the Review, as set out in the Terms of Reference, are to:
••summarise the key elements of the Tasmanian VAD Bill; compare it with relevant voluntary assisted dying (VAD) regimes in other jurisdictions; and

  • •
  • identify further considerations in relation to the implementation and

administration of the Bill, should it pass into law.

The Review Panel has undertaken this work mindful of the fact that VAD raises matters that are central to peoples’ values and beliefs and provokes strong feelings across the breadth of our community. The Panel appreciates that establishing a legislative framework for VAD challenges certain long-established norms regarding medical practice and religious beliefs. It also challenges the prohibition on the intentional ending of human life which is a cornerstone of our society and the legal system that underpins it.
The Panel believes that there are three main aspects of the Bill which will require further consideration in order to ensure that the Tasmanian VAD regime strikes an appropriate balance and does not lead to unintended consequences:

•

•
Whether the safeguards included in the Bill to protect vulnerable persons against exploitation and abuse are appropriately balanced with the need to establish a VAD system which is accessible to terminally ill people who are suffering

  • intolerably at the end-of-life
  • The questions raised by VAD and the form that any

VAD legislation should take require that the Tasmanian

Parliament undertake the difficult task of weighing

up the desirability of promoting individual rights and autonomy under circumstances when these rights may

conflict with established social and professional ethics

and traditions.
Whether the proposed regime for organisational non-participation (and the obligations on organisations that decide not to provide VAD services) balances the need to promote individual access to VAD with the ability of organisations to choose whether or not they provide or support

  • VAD services
  • Given its Terms of Reference, the Review does not make

recommendations as to the whether the Tasmanian VAD Bill should be amended and/or passed into law. Rather, the Review aims to provide the Tasmanian Parliament with analysis and evidence to guide the Parliament’s ongoing consideration of the Tasmanian VAD Bill. This Report is designed to complement the extensive research, engagement and debate that has informed the deliberations of the Tasmanian Parliament in recent

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    Independents in Tasmania’s Legislative Council: Analysing strategies to achieve influence* Kate Crowley and Joshua Lippis Associate Professor, School of Social Sciences, University of Tasmania Bachelor of Arts Honours Graduate, School of Social Sciences, University of Tasmania *Double-blind reviewed article Abstract Independent Members (IMLCs) have long dominated the Tasmanian Legislative Council (Council). They are expected to play a review and scrutiny rather than a policy-making role. However, this article presents research that finds that such Members are indeed able to achieve policy influence despite their lack of supportive party colleagues or a party structure. Current and former IMLCs, one Labor MLC, and one Member of the lower House of Assembly, were interviewed for this research. They were asked about the IMLC role as they see it, the strategies used, if in fact they are used, to gain policy influence, IMLC work and influence on committees, and the obstacles, including political obstacles, to IMLCs achieving influence. Our paper addresses the lack of studies of the legislative behaviour of Councillors, and establishes that, despite the review and scrutiny focus of their role, and the attribution of the policy- making role to the lower house, IMLCs do seek influence and use various means of achieving it. ‘Tasmania has been well served by an upper house dominated by independents – they are there to knock the rough edges off government’.1 1 Tony Mulder IMLC 2011-17, See G. Burgess, and E. Gramenz, ‘Fresh Calls to Curb the Powers of Tasmania’s Upper House’, ABC News 20 June 2017. 102 INTRODUCTION Westminster upper houses are not known for their power to determine policy, indeed the literature typically suggests that to pursue such power would be to be seen to usurp the policy-making role of lower houses.
  • MEDIA STATEMENT Peak Body Welcomes Upper House Support of Pill Testing Motion

    MEDIA STATEMENT Peak Body Welcomes Upper House Support of Pill Testing Motion

    MEDIA STATEMENT Peak Body welcomes Upper House support of pill testing motion The Alcohol, Tobacco and other Drugs Council of Tasmania has congratulated the Tasmanian Legislative Council members who supported Member for Murchison, Ruth Forrest’s pill testing motion this evening. ATDC chief executive, Alison Lai said that while the final motion stopped short of calling on the Tasmanian Government to trial pill testing during this festival season, she was very pleased with the outcome, which would assist in keeping a Tasmanian pill testing trial a possibility in the future. “First and foremost we are respectful of the Tasmanian Government’s position that they are not ready, at this stage, to conduct a trial of pill testing,” Ms Lai said. “We appreciate that this is not a matter that will be able to be resolved before the upcoming festival season, and we thank them for their ongoing commitment to reviewing the evidence as it becomes available. “The concept of pill testing continues to generate strong interest and opinions across the broader community, and these diverse views are being mirrored in our parliament. “It is still our position that there is sufficient evidence to conduct a trial of pill testing in Tasmania and we remain committed to working with government to address any concerns that they may have. “We are encouraged by tonight’s outcome, which sends a clear message that the Upper House wants to see strategies introduced to reduce the harms of illicit drugs at our music festivals and events, and that there continues to be broad support for keeping pill testing on the table as a potential option for the future.
  • Yearbook 2014

    Yearbook 2014

    TASMANIAN LEADERS YEARBOOK 2014 LEADERS TASMANIAN YEARBOOK 2014 TASMANIAN LEADERS YEARBOOK 2014 CONTENTS OUR MISSION ..........................................................................................4 OUR VALUES .............................................................................................4 ABOUT TASMANIAN LEADERS .................................................5 PROGRAM OUTCOMES ...................................................................5 MESSAGE FROM THE CHAIR .......................................................6 REFLECTIONS ON THE 2014 TLP JOURNEY ......................8 TLP 2014 GRADUATES ................................................................... 20 2014 LEARNING SET PROJECTS .............................................. 44 EMPLOYER TESTIMONIALS .......................................................... 46 LEADERSHIP CHAMPIONS .......................................................... 48 THANK YOU ........................................................................................... 49 TLI BOARD MEMBERS ..................................................................... 50 TASMANIAN LEADERS ALUMNI SUB-COMMITTEE UPDATE .......................................................... 52 2013 GRADUATION DINNER ................................................... 55 GRADUATES ON THE GO ........................................................... 56 TLP GRADUATES ................................................................................ 58 OUR PARTNERS ..................................................................................